Petition for Writ of Certiorari — Cameron v. Fogarty

86.1402

Supreme Court, U.S,

FILED

MAR 2 \987

JOSEPH F. SPANIOL, JR.

IN THE CLERK

Supreme Court of the United a

OCTOBER TERM, 1986

> —

KENNETH S. CAMERON,

—_V.—

MATTHEW FOGARTY and JOHN HALBIG,

Petitioner,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

STUART ROBINOWITZ

1285 Avenue of the Americas

New York, New York 10019

(212) 373-3000

Attorney for Petitioner

Kenneth S. Cameron

Of Counsel:

AUDREY S. FEINBERG

DIANA HASSEL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

—and—

STEVEN R. POPOFSKY

“

;

<

Question Presented

Whether the common law principle in some states barring a

tort action for false arrest by a person subsequently convicted

should be incorporated into 42 U.S.C. § 1983, thereby denying

a remedy for an egregious violation of a fundamental constitu-

tional right?

TABLE OF CONTENTS

PAGE

EG AES i

Se eee ee aaa |

ee Ce eb keee ee eeeees l

Ne ee eu aes beveuseeee 2

Reemoes Sor Cormntine the Writ 2... ccc cc cc ce csccnes 3

I. The Decision Below Thwarts the Objectives of

Me eS gs a Shed nidseeeaae des 3

Deterrence of Police Abuse.................... 5

oo 7

II. The Decision Below Conflicts With This Court’s

Opinion in Haring v. Prosise ............00005: 9

Ill. The Decision Below Conflicts with Decisions of

Other Circuit Courts and State Courts.......... i)

ee De eden cet en evnee 12

Table of Authorities

Cases: PAGE

ee Oe Ok OT ene 6

Bell v. Hood, 327 U.S. 678 (1946) .............cc0eee 8

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971)........... 7,8

Board of Regents v. Tomanio, 446 U.S. 478 (1980) .... 3

Broughton v. State of New York, 37 N.Y.2d 451, 335

N.E.2d 310, 373 N.Y.S.2d 87 (1975), cert. denied, 423

Fs a TINS i oo ie ls ta av ob os ce a beans 1]

Brown v. Edwards, 721 F.2d 1442 (Sth Cir. 1984)...... 9, 10

Burnett v. Grattan, 468 U.S. 42 (1984) ............... 3, 8

Carey v. Piphus, 435 U.S. 247 (1978) ................ 4

City of Newport v. Fact Concerns, Inc., 453 U.S. 247

GEOR nn esa cada nad Deena ee esk bee naks Pekbke uk 4

Dunaway v. New York, 442 U.S. 200 (1979) ..........

Gerstein v. Pugh, 420 U.S. 103 (1975)................ 6

Greer v. Turner, 603 F.2d 521 (Sth Cir. Ss saad oon. 10

Guerro v. Mulhearn, 498 F.2d 1249 (ist Cir. 1974)..... 10

Haring v. Prosise, 462 Se ME 3: )

Henry v. United States, 361 U.S. 98 (1959) ........... 7

Jackson v. Official Representatives and Employees of

the Los Angeles Police Dep’t, 487 F.2d 885 (9th Cir.

tg EE oe ee epi Une rea REE 11

Mastracchio v. Ricci, 498 F.2d 1257 (1st Cir. 1974), cert.

SII, Ee OP, FU TN ww hn oooh kb bo voeecdeecs 1]

Malley v. Briggs, 106 S. Ct. 1092 (1986).............. 7

ROU ins fear arin cm std © mrt

PAGE

McClam v. Barry, 697 F.2d 366 (D.C. Cir. 1983), over

ruled on other grounds, Brown v. United States, 742

F.2d 1498 (D.C. Cir. 1984), (en banc), cert. denied,

Poi Gite. we oki, -) err rr errrrrrrr rr errr )

Morgan v. New York Central R.R. Co., 56 A.D. 177, 9

N.Y.S.2d 339 (Ist Dept. 1939) ........- eee eee ee eens 1]

Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968).... 9

Owen v. City of Independence, 445 U.S. 622 (1980).... 8

Raysor v. Port Authority of New York and New Jersey,

768 F.2d 34, (2d Cir. 1985) cert. denied 106 S.Ct. 1227

(RODD icdcncasccdccennccdndeassveeneases finetass 8

Singleton v. Perry, 45 Cal. 2d 489, 289 P. 2d 794 (1955) 5, 11

Scheuer v. Rhodes, 416 U.S. 232 (1974) .........-565: 5

Wilson v. Garcia, 471 U.S. 261 (1985). .......-0-0005- 7

Statutes:

42 U.S.C. § 1983 (1981)... 2... cece eee e rere ee eceee passim

Other Authorities:

1 Harper & James, The Law of Torts (1956).......--. passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-_

>_>

KENNETH S. CAMERON,

Petitioner,

—

MATTHEW FOGARTY and JOHN HALBIG,

Respondents.

>

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner Kenneth S. Cameron asks that a writ of certiorari

issue to review the decision of the United States Court of

Appeals for the Second Circuit, entered on December 1, 1986.

Opinions Below

The opinion of the Court of Appeals is reported at 806 F.2d

380 and is annexed to this petition as Appendix A. The

unreported opinion of the United States District Court for the

Southern District of New York is annexed as Appendix B.

Jurisdiction

The judgment of the Court of Appeals was entered on

December 1, 1986. Petitioner invokes this Court’s jurisdiction

under 28 U.S.C. § 1254(1).

Statutory and Constitutional Provisions Involved

The Civil Rights Act of 1871, 42 U.S.C. § 1983, provides:

Every person who, under order of any statute, ordi-

nance, regulation, custom, or usage, of any state or

territory, or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress.

Statement of the Case

On February 13, 1980, respondents Fogarty and Halbig, two

New York City police officers, observed petitioner Cameron, a

black man, make an illegal turn in a car with a broken vent

window. The officers stopped Cameron for questioning. After

he exited from the car, Cameron produced a facially valid

driver’s license and Hertz rental agreement. The officers

sought information over the radio as to whether the car had

been reported stolen, but received no such information. None-

theless, the officers arrested Cameron and brought him to the

station house for further investigation.

Based on evidence gathered after he was brought to the

station house, Cameron was convicted of possession of stolen

property, namely the Hertz rental car.

Cameron filed a civil rights complaint for damages under 42

U.S.C. § 1983 alleging that he was arrested without probable

cause. The court below, affirming the district court, ruled that

because Cameron had been convicted, he could not bring a

§ 1983 suit alleging unconstitutional arrest. The Second Circuit

denied Cameron his federal remedy by incorporating into

§ 1983 a common law rule that those convicted are precluded

from bringing tort actions for false arrest.

also aati ee

Despite § 1983’s salutary goals of protecting civil rights and

preventing misuse of police power, the court below applied a

narrow common law rule embodying notions such as: an

arrested person deserves no redress because “he got exactly

what was coming to him,” and the “success” of the officer’s

conduct “justifies the law in ignoring the means of its accom-

plishment.” 1 Harper & James, The Law of Torts, 281, 346-47

(1956). Those tort notions flatly contradict § 1983’s objectives

of protecting our citizens and curbing misuse of state power,

and, accordingly, should not be incorporated into our nation’s

fundamental civil rights law.

In addition, the decision below is inconsistent with an

opinion of this Court and also conflicts with the rulings of

several other circuits.

Reasons for Granting the Writ

I.

The Decision Below Thwarts the Objectives of § 1983

Under the decision below, an individual who is unlawfully

swept off the street into custody because of a police officer’s

unfounded hunch, but who is eventually convicted on evidence

developed days or weeks after the arrest, is left without any

remedy for the unconstitutional arrest. Sanctioning this “end

justifies the means” police method encourages the police to

arrest anyone who looks suspicious—because he or she is

black, or young, or simply different. The Court should grant

the writ to consider this serious erosion of protection under

§ 1983.

The principal purposes of § 1983 are twofold: to prevent

abuse of state power, and to compensate persons whose civil

rights have been violated. Burnett v. Grattan, 468 U.S. 42, 53

(1984); Board of Regents v. Tomanio, 446 U.S. 478, 488

(1980). The decision below thwarts both statutory goals.

The court below incorporated into § 1983 the so-called

“common law bar” to tort claims for false arrest by a plaintiff

previously convicted. But state tort law should only be incor-

porated into § 1983 when it harmonizes with the overriding

purposes of § 1983. As this Court recognized:

The purpose of § 1983 would be defeated if injuries

caused by the deprivation of constitutional rights went

uncompensated simply because the common law does not

recognize an analogous cause of action.

Carey v. Piphus, 435 U.S. 247, 258 (1978).

This Court has also determined that “it would defeat the

promise of [§ 1983] to recognize any pre-existing immunity [or

defense] without determining both the policies that it serves

and its compatibility with the purposes of § 1983.” City of

Newport v. Fact Concerns, Inc., 453 U.S. 247, 259 (1981).

By incorporating the “common law bar” to false arrest

claims into § 1983 actions, the court below failed to recognize

the clear conflict between state tort law and a federal statute

designed to protect constitutional rights.

The common law bar to a tort action for false arrest is not

concerned with the constitutional policies underlying § 1983.

Nor is the state tort law based on the theory that probable

cause for the arrest was actually or implicitly determined by

the criminal conviction. Rather, the state tort principle em-

bodies the policy that a damage award is not justified from the

standpoint of either actor: plaintiff, being a guilty person, is

morally undeserving of a recovery, while the arresting officer,

having done his job of catching a criminal, should not be

punished for his success. As a leading treatise explains, “the

plaintiff got exactly what was coming to him,” and “[r]Jegard-

less of the general questionable or even unjustifiable nature of

his conduct, the defendant has done a good turn in the

particular case.” 1 Harper & James, The Law of Torts 281, 347

(1956). The treatise concludes: “The law is practical business.

No need for going into such questions as reasonableness or

4

Ri

4

:

‘

3

Cant he ET Ca i AM Ie tri EP eer

probable cause.” /d. at 347. This may have been valid state tort

law in the nineteenth century. But it surely is not a principled

statement of federal constitutional law today.

The decision below incorporated the common law bar, as

adhered to by New York courts, by wrongly assuming that the

common law bar is uniformly followed. But adherence to the

common law bar is not universal, as pointed out by the Harper

& James treatise cited above. Supra, at 280. California tort

law, for example, does not foreclose a false arrest claim after

conviction. The Supreme Court of that state explained:

No one can recover damages for a legal arrest and

conviction; therefore, in cases of malicious prosecution it

becomes necessary to await the final determination of the

action. But the same principle does not apply to an action

for false imprisonment, as the form of action is based on

an illegal arrest and no matter ex post facto can legalize

an act which was illegal at the time it was done.

Singleton v. Perry, 45 Cal. 2d 489, 495, 289 P.2d 794, 798 (Cal.

1955) (emphasis added).

The decision below, by immunizing police officers whose

“gut” feelings turn out to be correct, represents approval of

police activity predicated upon hunches rather than upon

probable cause. As discussed below, such approval is anath-

ema to the two purposes of the federal civil rights laws: to

prevent abuse of state power, and to compensate those injured

by violations of their civil rights.

Deterrence of Police Abuse

The state tort rule allows police officers who arrest without

probable cause to escape liability if their guesses turn out to be

correct. In contrast, § 1983 was enacted to discourage police

from overstepping the boundaries of lawful power. Scheuer v.

Rhodes, 416 U.S. 232, 243 (1974). Such boundaries prohibit

making warrantless arrests unless there is probable cause—

6

unless there are “facts and circumstances ‘sufficient to warrant

a prudent man in believing that the [suspect] had committed or

was committing an offense.’ ” Gerstein v. Pugh, 420 U.S. 103,

111-12 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

Deterrence of unconstitutional police behavior requires de-

parture from the state tort rule in federal civil rights cases.

There must be widespread police awareness that arrests made

without probable cause will provide the basis for subsequent

civil litigation—regardless of the ultimate fate of the individual

arrested.

The decision below found that the exclusionary rule (i.e., the

rule that excludes from admission at criminal trials evidence

unlawfully obtained) is sufficient to deter law enforcement

officers from making improper arrests. False arrests cften

constitute more onerous civil rights violations than improper

searches. Moreover, the exclusionary rule provides no remedy

at all for a person falsely arrested but from whom no evidence

is seized pursuant to the arrest. Finally, courts are increasingly

unwilling to exclude evidence due to the social cost of failing to

convict those correctly accused of crimes. A civil remedy that

does not prevent conviction provides for deterrence without

exacting the same social cost.

This Court has recently reiterated its belief in the usefulness

of civil remedies for constitutional violations as compared to

the cost of excluding evidence obtained because of the wrong-

ful act:

While we believe the exclusionary rule serves a necessary

purpose, it obviously does so at a considerable cost to

society as a whole, because it excludes evidence probative

of guilt. On the other hand, a damages remedy for an

arrest following an objectively unreasonable request for a

warrant imposes a cost directly on the officer responsible

for the unreasonable request, without the side effect of

hampering a criminal prosecution. ‘

Malley v. Briggs, 106 S. Ct. 1092, 1098 (1986); see also Bivens

v. Six Unknown Agents of the Federal Bureau of Narcotics,

403 U.S. 388, 411-27 (1971) (dissenting opinion of Burger,

C.J., advocating damage remedy in lieu of exclusionary rule

for violating Fourth Amendment rights).

In sharp contrast to the constitutional safeguards embodied

in § 1983, state tort law is not concerned about deterring false

arrests—indeed, quite the opposite. The state tort rule reflects

a barely-veiled bias in favor of encouraging illegal, but success-

ful, police behavior. This policy flouts the deterrent objective

of the federal civil rights law, and has no place in § 1983

jurisprudence.

Protection of Civil Rights

In addition to deterring police abuse, § 1983 is designed to

protect the civil rights of all our citizens and to provide a

remedy for those injured by violation of their civil rights.

By requiring probable cause for arrests, our society has

made a judgment: that an individual need not fear being

arbitrarily picked up by the police merely because he or she

looks suspicious or different to a police officer. Dunaway v.

New York, 442 U.S. 200, 213-14 (1979); Henry v. United

States, 361 U.S. 98, 100-02 (1959). That liberty, guaranteed by

the Fourteenth Amendment, is enforceable under § 1983.

Wilson v. Garcia, 471 U.S. 261, 278 (1985).

This Court has emphasized the importance of providing a

remedy to victims of unconstitutional official action:

A damages remedy against the offending party is a vital

component of any scheme for vindicating cherished con-

stitutional guarantees. . . . [M]Jany victims of municipal

malfeasance would be left remediless if [municipalities]

were . . . allowed to assert a good-faith defense. Unless

countervailing considerations counsel otherwise, the in-

justice of such a result should not be tolerated.

Owen v. City of Independence, 445 U.S. 622, 651 (1980)

(denying municipalities a qualified immunity for good-faith

constitutional violations).

The same refusal to deny a remedy to victims of constitu-

tional deprivation was repeated by the Court in Bivens. There,

the Court relied on the absence of an adequate state tort

remedy in allowing a cause of action for damages grounded

directly in the Constitution:

[W]here federally protected rights have been invaded, it

has been the rule from the beginning that courts will be

alert to adjust their remedies so as to grant the necessary

relief. . . . [It is] well settled that where legal rights have

been invaded, and a federal statute provides for a general

right to sue for such invasion, federal courts may use any

available remedy to make good the wrong done.

403 U.S. at 392, 396, (quoting Bell v. Hood, 327 U.S. 678, 684

(1946)). See also Burnett v. Grattan, 468 U.S. 42, 55 (1984)

(“the central objective of the Reconstruction-era civil rights

statutes [is] to ensure that individuals whose federal Constitu-

tional or statutory rights are abridged may recover damages or

secure injunctive relief”).

The court below was mistaken in dismissing an arrest with-

out probable cause as insubstantial. Any deprivation of

liberty—no less an arrest on a hunch—is a significant intrusion

and deserves a remedy. Unlawful detentions, of even short

periods of time, have been found to justify damage awards.

See, e.g., Raysor v. Port Authority of New York and New

Jersey, 768 F.2d 34, 39 (2d Cir. 1985), cert. denied, 106 S. Ct.

1227 (1986). An unlawfui arrest followed by detention for

hours, or potentially days, while the police gather evidence to

justify the arrest and ultimately to convict, is an egregious

deprivation of constitutional rights and should not be counte-

nanced under § 1983.

Il.

The Decision Below Conflicts With This Court’s

Opinion in Haring v. Prosise

In Haring v. Prosise, 462 U.S. 306 (1983), this Court

unanimously upheld a § 1983 damage action for an allegedly

illegal search that led to a guilty plea. This Court expressly

rejected the defendant’s argument that plaintiff’s guilty plea

precluded a § 1983 action based on the illegal search, even

though the search had uncovered the evidence that formed the

basis of plaintiff’s conviction. /d. at 317-23.

The logic of Haring applies squarely to this case. If a guilty

plaintiff may sue under § 1983 for an illegal search, he should

a fortiori be permitted to sue for an illegal arrest. See Brown v.

Edwards, 721 F.2d 1442, 1449 n.8 (Sth Cir. 1984) (Supreme

Court’s refusal to preclude suit in Haring “arguably points

awa:; ._om the [common law tort rule as to false arrests]”).

7

IIl.

The Decision Below Conflicts with Decisions of Other

Circuit Courts and State Courts

The decision below, along with a similar ruling by the

District of Columbia Circuit,' conflicts with decisions and

reasoning by the First, Fifth, Sixth and Ninth Circuits, as well

as a decision of the Supreme Court of California.

In contrast to the decision below, the Sixth Circuit refused to

dismiss a § 1983 complaint of false arrest merely because the

plaintiff was later convicted. Mulligan v. Schlacter, 389 F.2d

231 (6th Cir. 1968) (per curiam). While the court went on to

dismiss the case on statute of limitation grounds, it first ruled

that a criminal conviction did not mandate dismissal, stating,

l McClam v. Barry, 697 F.2d 366 (D.C. Cir. 1983), overruled on other

grounds, Brown v. United States, 742 F.2d 1498 (D.C. Cir. 1984) (en

banc), cert. denied, 471 U.S. 1073 (1985).

10

“the simple fact of an unreversed state conviction cannot by

itself require dismissal [of a civil rights action].” Jd. at 233.

The Fifth Circuit, like the Sixth Circuit, contradicts the

decision below. The Fifth Circuit reversed and remanded a

dismissal of a § 1983 complaint for false arrest and detention,

despite the plaintiff’s criminal conviction, writing, “our dispo-

sition of Greer’s appeal [affirming his criminal conviction] did

not resolve the false arrest and detention argument against

Greer.” Greer v. Turner, 603 F.2d 521, 522 (Sth Cir. 1979), after

remand, 639 F.2d 229 (Sth Cir. 1981) (ger curiam) (dismissing

complaint because plaintiff failed to prove lack of probable

cause for arrest). See Brown v. Edwards, 721 F.2d 1442, 1449

n.8 (Sth Cir. 1984) (“the resu/t in cases such as Greer...

appears inconsistent with such a bar [based on a conviction] as

to section 1983 complaints respecting the arrest”).

Similarly, the First Circuit in an analogous situation also

contradicts the decision below. Guerro v. Mulhearn, 498 F.2d

1249 (1st Cir. 1974). The First Circuit declared:

A denial of constitutionally protected rights may have

occurred in the course of the events leading up to trial, yet

may only be marginally relevant, or may even be entirely

irrelevant, to the trial and appeal. For example, a false

arrest, or an illegal search and seizure, or wiretap, may

constitute a compensable wrong while not undergirding

the validity of the criminal conviction to which it might be

related. In such a situation, both the right infringed and

the measure of the compensable damage may be assayed

wholly apart from the question of whether conviction was

proper.

Id. at 1254 (emphasis added). The First Circuit, while dismiss-

ing part of the complaint, remanded the § 1983 damage claim

for an illegal wiretap, refusing to dismiss this part of the claim

even though a state proceeding for review of plaintiff’s crimi-

nal conviction was pending. See also Mastracchio v. Ricci, 498

11

F.2d 1257, 1261 n.3 (1st Cir. 1974), cert. denied, 420 U.S. 909

(1975) (“For example, it might be claimed that . . . freedom

from pretrial incarceration ha[s] been infringed, and thlis]

could constitute compensable wrongs wholly apart from the

question of the constitutional validity of conviction.”).

Similarly, the rationale of the Ninth Circuit in Jackson v.

Official Representatives and Employees of the Los Angeles

Police Dep’t, 487 F.2d 885 (9th Cir. 1973) (per curiam), cannot

be reconciled with the decision below. There, the Ninth Circuit

remanded a § 1983 claim of illegal search of a home for further

fact-finding, while dismissing claims of false arrest and illegal

search of an automobile because facts showed there was

probable cause.

There is thus a conflict among the circuits on an important

issue of federal civil rights law.

Moreover, there is also a conflict under § 1983 because of

different state laws. For example, in New York, once con-

victed, a plaintiff is not permitted to bring a tort suit for false

arrest. See Broughton v. State, 37 N.Y.2d 451, 355 N.E.2d 310,

373 N.Y.S.2d 87 (1975), cert. denied, 423 U.S. 929 (1978);

Morgan v. New York Central R.R. Co., 256 A.D. 177, 9

N.Y.S.2d 339 (Ist Dept. 1939). In California, exactly the

opposite rule holds—a conviction does not prevent a plaintiff

from suing for false arrest. Singleton v. Perry, 45 Cal. 2d 489,

289 P.2d 794 (1955) (“the form of action is based upon an

illegal arrest and no matter ex post facto can legalize an act

which was illegal at the time it was done”). Federal constitu-

tional rights should not be allowed to vary from state to state.

12

Conclusion

For the foregoing reasons, petitioner respectfully requests

the issuance of a writ of certiorari to the United States Court

of Appeals for the Second Circuit.

March 2, 1987

Respectfully submitted,

STUART ROBINOWITZ

1285 Avenue of the Americas

New York, New York 10019

(212) 373-3000

Attorney for Petitioner

Kenneth S. Cameron

Of Counsel:

Audrey S. Feinberg

Diana Hassel

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

—and—

STEVEN R. POPOFSKY

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

+>

No. 684—August Term, 1985

(Argued January 29, 1986 Decided December |, 1986)

Docket No. 85-2297

+>

KENNETH S. CAMERON,

Plaintiff-Appellant,

a= Y, «um

MATTHEW FOGARTY and JOHN HALBIG,

Defendants-Appellees.

+

Before:

NEWMAN, KEARSE, and MINER,

Circuit Judges.

+

Appeal from a judgment of the United States District

Court for the Eastern District of New York, Edward R.

2a

Neaher, Judge, dismissing complaint under 42 U.S.C.

§ 1983 for unlawful arrest without probable cause, on the

ground that suit is barred by plaintiffs conviction of

offense for which he was arrested.

Affirmed.

+>

STEVEN R. POPOFSKY, New York, New York,

(Diana Hassel, Paul, Weiss, Rifkind,

Wharton & Garrison, New York, New

York, on the brief), for Plainiiff-Appellant.

ELIZABETH DVORKIN, New York, New York

(Frederick A.O. Schwarz, Jr., Corporation

Counsel of the City of New York, June A.

Witterschein, New York, New York, on

the brief), for Defendants-Appellees.

~~

KEARSE, Circuit Judge:

Plaintiff Kenneth S. Cameron, who was convicted in

1980 in New York State Supreme Court of possession of

stolen “roperty following his arrest by defendant police

officers Matthew Fogarty and John Haibig, appeals from

a judgment of the United States District Court for the

Eastern District of New York, Edward R. Neaher, Judge,

dismissing his amended complaint (“complaint”), brought

under 42 U.S.C. § 1983 (1982), seeking damages from

defendants on the ground that they had arrested him

without probable cause, in violation of his federal consti-

tutional rights. The district court granted defendants’

motion for summary judgment dismissing the complaint,

a al

er

3a

ruling that New York law bars a civil action for arrest

without probable cause if the claimant has been convicted

of the crime for which he was arrested. On appeal, Cam-

eron argues that New York law should not have been

applied, since its application frustrates the purpose of

§ 1983. Defendants urge that we affirm the dismissal,

either on the ground adopted by the district court or on

the ground that the claim was barred by principles of col-

lateral estoppel. We conclude that although principles of

collateral estoppel do not apply, the judgment should be

affirmed because common-law principles incorporated in

§ 1983 bar the present suit.

I. BACKGROUND

Insofar as it is pertinent to Cameron’s claim of false

arrest and the propriety of the district court’s dismissal of

the complaint, the trial record in state court reveals the

following events and proceedings.

A. The Events

On February 13, 1980, New York City Police Officers

Fogarty and Halbig observed Cameron, driving a car with

Illinois license plates and a broken left rear vent window,

make an illegal right turn through a red light on 111th

Street in Manhattan and park illegally at a bus stop on

Eighth Avenue. Cameron and his passenger, Anthony

Wilson, left the car and began to walk away from it.

Because of the illegal right turn and because the broken

vent window caused them to suspect that the car might

have been stolen, the officers pulled alongside the car and

hailed Cameron, identifying themselves as police officers.

When asked for identification of himself and his vehi-

cle, Cameron produced a Virginia driver’s license bearing

4a

his photograph and the name Sammy Davis, Jr., and a

carbon copy of a Hertz Corporation (“Hertz”) car rental

agreement made out to Jenne M. Currie, whom Cameron

identified as his aunt. The agreement indicated that the

car was to have been returned to Hertz on February 3.

Cameron told the officers that the car window had been

broken recently, that he had reported it to Hertz at New-

ark Airport, and that he had there been added to the

rental agreement as a driver. The copy of the rental agree-

ment bore handwritten notations in ink that Sammy

Davis, Jr., was an authorized additional driver and that

an accident report had been filed at Newark Airport.

In the minute or two between noticing Cameron’s car

and stopping alongside it, the officers had radioed police

headquarters for information as to whether the car had

been reported stolen, but had received no response. After

questioning Cameron they remained suspicious because

of the broken window, the notations inked in on the rental

agreement, and the apparent overdue return of the car,

and they decided to go to the police station to investigate

further. Cameron and Wilson rode with Fogarty in the

police car; Halbig drove the rental car.

At the station house, Cameron identified himself as

Kenneth Cameron and showed Fogarty a passport in that

name. He also produced an airline ticket to Barbados

made out to K. Cameron, a social security card bearing

the name Sammy Davis, Jr., and four state child support

checks made out to Giovanni Stanislaus, who he said was

his child.

Halbig telephoned Hertz to inquire about the car. Hertz

employees informed both Halbig and Fogarty that the car

was stolen, having been fraudulently rented at O’Hare

Airport in Chicago. The employees also stated that Hertz

Sa

did not authorize additional drivers in the manner indi-

cated on Cameron’s rental agreement and that no acci-

dent report had been filed.

Cameron was then placed under arrest and charged

with several offenses including grand larceny, criminal

impersonation, and criminal possession of stolen prop-

erty.

B. The Criminal Trial

At trial, the state’s evidence included Fogarty’s testi-

mony describing the events as set forth above. When

Fogarty was asked what statements Cameron had made

about the license and the rental agreement when he pro-

duced those documents on the street, Cameron’s counsel

requested a sidebar conference, which included the fol-

lowing colloquy:

MR. DOCKRY [counsel for Cameron]: I would

call to the Court’s attention statements are now being

proffered, statements allegedly made by the defen-

dant. oe

It woud [sic] seem I am going to run into the area

of rights.

I would just ask the District Attorney to clarify the

rights issue and the Miranda issue.

I am relatively certain it is all quite proper, but

nonetheless.

THE COURT: Number one, I assume that the con-

tention is that this is not a custodial interrogation.

MR. DOCKRY: At this stage.

MR. BARBER [the prosecutor]: That is entirely

correct.

6a

(Tr. 184-85.) The Sammy Davis, Jr. driver’s license was

then introduced into evidence without objection by Cam-

eron. The rental agreement had been received in evidence

earlier, also without objection by Cameron.

The social security card, the child-support checks, and

the airline ticket were received in evidence subject to

Cameron’s counsel’s “reserv[ation of an] objection” as to

those documents. The reserved objections were overruled

when, during Cameron’s cross-examination of Fogarty,

they were renewed in the following colloquy:

MR. DOCKRY: I hate to bother the Court with

what may be a trifling matter.

You recall in a brief bench conference this mroning

[sic], in the course of the officer’s testimony who is

about to resume the stand, I asked to make very sure

that the search which was to follow at the police sta-

tion and the statements then taken, and all these

things, that those would be probably [sic—properly?]

structured.

The Court permitted me to wait until it became

more timely.

Thereafter when these things were introduced into

evidence I took objection and I also asked the Court

to give me permission to renew an objection on a

later date after cross examination.

But at this point it must be clear that the items that

were introduced have not been properly foundationed

with respect to the propriety of such a thing as admis-

sible evidence in this case.

I would therefore ask—

7a

THE COURT: Based on the evidence I heard from

this officer, the specific exhibits, driver’s license, air-

line ticket, other property were the incidents of a law-

ful arrest.

Under the circumstances they were properly admis-

sible.

There were no pretrial motions to suppress. I don’t

know what the basis would have been in making one,

under the circumstances of this case.

It is clear, after the defendant had been arrested, I

assume he was searched, and those properties were

the consequence of an arrest.

-MR. DOCKRY: Thank you, sir. Now I am ready to

proceed.

(Tr. 214-16.)

Cameron was convicted of first degree criminal posses-

sion of stolen property, in violation of N.Y. Penal Law

§ 165.50 (McKinney 1975). He appealed the conviction,

but did not challenge the admissibility of any evidence

against him. His conviction was affirmed without opinion.

People v. Cameron, 86 A.D.2d 783 (1st Dept). leave to

appeal denied, 56 N.Y.2d 595 (1982).

C. The Present Amended Complaint

In February 1982, Cameron commenced the present

action pro se, alleging that the defendants had arrested

him in violation of his constitutional rights and seeking

damages under 42 U.S.C. § 1983. The district court’s

eariy dismissal of the action was reversed by this Court as

premature, Cameron vy. Fogarty, 705 F.2d 676 (2d Cir.

1983), and on remand, counsel was assigned and filed the

8a

complaint that is the focus of this appeal. Cameron

alleged that his arrest took place on Eighth Avenue when

he was required to accompany the officers to the police

station, and that the arrest violated his constitutional

rights because at that time the officers lacked probable

cause to believe that a crime had occurred or that he had

committed it and lacked any good faith belief that proba-

ble, cause existed for his arrest.

Defendants answered and moved for summary judg-

ment on the ground that the state court’s ruling that the

evidence was admissible at Cameron’s criminal trial

because it had been obtained in a search incident to a law-

ful arrest necessarily included a finding that there had

been probable cause to make the arrest, and that Camer-

on’s claim was therefore barred by principles of collateral

estoppel.

In a Memorandum Order dated August 19, 1985

(“Decision”), the district court granted defendants’

motion for summary judgment on the ground that, even

if the issue of probable cause to arrest had not been raised

and rejected at the criminal trial, under New York com-

mon law Cameron’s conviction barred his subsequent

civil suit for arrest without probable cause. Reasoning

that a claim under New York law for false arrest or false

imprisonment would be barred by a conviction of the

offense for which the arrest or imprisonment occurred,

Decision at 6 (citing Broughton v. State, 37 N.Y.2d 451,

458, 373 N.Y.S.2d 87, 95, cer’. denied, 423 U.S. 929

(1975)), and that a § 1983 claim alleging an arrest without

probable cause is similar to a state law claim for false

arrest, Decision at 6 (citing Raysor v. Port Authority, 768

F.2d 34 (2d Cir. 1985), cert. denied, 106 S. Ct. 1227

(1986)), the court concluded that

9a

[gliven the similarities in the state and federal claims

here, logic would dictate that plaintiff's state convic-

tion would also bar a federal claim asserting the

absence of probable cause to arrest....

... Although the court’s ruling that plaintiffs con-

viction bars the instant suit is not based upon collat-

eral estoppel per se, see Pouncey v. Ryan, 396 F.

Supp. 126, 128 n. 2 (D.Conn. 1975), “* * * the preclu-

sion mandated for state court judgments by section

1738 is not expressly restricted to that achieved under

the ‘res judicata’ or ‘collateral estoppel’ labels; * * *.”

Brown v. Edwards, 721 F.2d 1442, 1449 n.8 (Sth Cir.

1984) (emphasis in original). Thus, although a finding

of probable cause to arrest was not necessary to sus-

tain plaintiff's conviction, see United States v. Crews,

445 US. 463, 474 (1980), under the law of New York,

that conviction, sustained on appeal, necessarily

includes a finding that there was probable cause to

arrest and thereby bars a subsequent civil suit chal-

lenging the existence of probable cause for the arrest.

Decision at 7-8.

Accordingly, the court dismissed the complaint. This

appeal followed.

II. DISCUSSION

On appeal, defendants urge us to uphold the dismissal

of the action either on the ground of collateral estoppel or

on the state-law-bar ground adopted by the district court.

Cameron argues that the conditions for application of

principles of collateral estoppel are not met and that the

state-law-bar ground is contrary to federal policy. We

10a

agree with Cameron that litigation of the issue raised here

as to probable cause is not barred by principles of collat-

eral estoppel, but we conclude that under common-law

principles, as properly incorporated into § 1983 actions of

this type, Cameron’s present lawsuit is defeated by his

prior conviction.

A. Collateral Estoppel

Section 1738 of 28 U.S.C., known as the “full faith and

credit statute,” provides, in pertinent part, as follows:

The records and judicial proceedings of any court

of any ... State [of the United States] ... shall have

the same full faith and credit in every court within the

United States ... as they have by law or usage in the

courts of such State ....

28 U.S.C. § 1738 (1982). This section requires that a fed-

eral court give effect to at least the res judicata and collat-

eral estoppel rules of the state when a state-court

judgment is in question. See Marrese v. American Acad-

emy of Orthopaedic Surgeons, 105 S. Ct. 1327, 1331-33

(1985). The state-court judgment must be given “the same

preclusive effect as would be given that judgment under

the law of the State in which the judgment was rendered,”

Migra v. Warren City School District Board of Education,

465 U.S. 75, 81 (1984), whether that preclusive effect

stems from the actual litigation and resolution of the issue

in a prior state court proceeding, Haring v. Prosise, 462

U.S. 306, 313-16 (1983); Kremer v. Chemical Construc-

tion Corp., 456 U.S. 461, 481-83 (1982); Allen v. McCurry,

449 U.S. 90, 97-99, 101 (1980), or from the fact that the

issue could have been litigated in the state court proceed-

ing, Migra v. Warren County School District Board of Edu-

cation, 465 U.S. at 83-85.

nA i ca Ah Sc tli Me AM dees ae

lla

Under New York law, a party is collaterally estopped

from relitigating an issue in a second proceeding if (1)

“the issue as to which preclusion is sought [is] identical

with the issue decided in the prior proceeding,” (2) “the

issue [was] necessarily decided in the prior proceeding,”

and (3) “the litigant who will be held precluded in the

present proceeding ... had a full and fair opportunity to

litigate the issue in the prior proceeding.” Capital Tele-

phone Co. v. Pattersonville Telephone Co., 56 N.Y.2d 11,

17, 451 N.Y.S.2d 11, 13 (1982). Defendants argue that

the issue of probable cause for Cameron’s arrest was

decided at his criminal trial because the trial court ruled

that various pieces of evidence were admissible because

they were seized as incident to a lawful arrest. Since the

arrest was made without a warrant and hence was not law-

ful unless there was probable cause, see, e.g., Dunaway v.

New York, 442 U.S. 200, 208 & n.9 (1979), they argue that

the trial court decided there had been probable cause for

the arrest. We conclude that the issue decided at the crim-

inal trial is not the issue presented here.

The testimony at trial revealed that some of the docu-

mentary evidence introduced against Cameron had been

taken from him on the street, and some had been taken

later. The Sammy Davis, Jr. driver’s license and the rental

agreement were produced by Cameron when he was

accosted by the officers on the street. These two docu-

ments were received in evidence without objection from

Cameron. Cameron did not argue at the criminal trial, as

he does in the present action, that his arrest occurred on

Eighth Avenue. At the trial, Fogarty testified that Cam-

eron was placed under arrest at the station house after the

officers had received the information from Hertz indicat-

ing that the car had been stolen, and Cameron took no

issue with Fogarty’s characterization of when the arrest

12a

occurred, apparently embracing the view that the circum-

stances on the street were “not ... custodial.” (Tr. 185.)

In contrast, the social security card in the name Sammy

Davis, Jr., the airline ticket for K. Cameron, and the state

child support checks for Giovanni Stanislaus were not

produced by Cameron until after he and the officers

arrived at the station house. Cameron objected to the

introduction of “these things,” focusing on “the search . . .

at the police station.” (Tr. 215.) As we read the trial

record, therefore, the trial court was never called upon to

determine either the moment at which the arrest occurred

or whether an arrest of Cameron on Eighth Avenue was

made with or without probable cause. Give the apparently

undisputed trial testimony that Cameron was not placed

under arrest until after he arrived at the station house,

and the fact that Cameron objected only with respect to

the documents seized at the police station, the trial court’s

ruling that the documents were the incidents of a lawful

arrest cannot reasonably be construed as a ruling that

Cameron was lawfully arrested on Eighth Avenue.

It is true that in overruling the objections the trial court

included the driver's license, which had been taken from

Cameron on the street, in its listing of the items that were

seized incident to a lawful arrest. However, given the facts

that no objection had been made to the introduction of

the license and that the court had earlier assumed and

been reassured by the parties that the street confrontation

was not custodial, we conclude that the court’s mention of

the license simply reflects a lapse of memory as to what

counsel’s phrase “these things” encompassed, rather than

any intent to rule that the arrest had occurred on the

street or that probable cause existed for Cameron’s arrest

on the street.

te ee el aa

;

|

|

;

:

|

;

l3a

Accordingly, we conclude that the issue raised in the

present lawsuit, i.e., the existence of probable cause to

arrest Cameron on Eighth Avenue, was neither decided by

the court at the criminal trial nor necessary to its ruling

that the documents to which Cameron’s objection was

addressed had been seized in connection with an arrest

made on probable cause. Thus, litigation in the present

lawsuit of the existence of probable cause to arrest Cam-

eron on Eighth Avenue is not barred by principles of col-

lateral estoppel.

B. The Common-Law Defense

The district court dismissed Cameron’s complaint on

the basis that even if New York principles of collateral

estoppel did not warrant the dismissal of the complaint,

§ 1738 required it to apply that aspect of New York law

that would give preclusive effect to the judgment of con-

viction in any subsequent civil challenge to the legality of

the arrest. While there are dicta supporting the view that

the reach of § 1738 is not limited to principles of res judi-

cata and collateral estoppel, see, e.g., Allen v. McCurry,

449 U.S. at 96 (“Congress has specifically required all fed-

eral courts to give preclusive effect to state-court judg-

ments whenever the courts of the State from which the

judgments emerged would do so”) (emphasis added), we

need not reach the question of whether § 1738 requires

the recognition of state-law preclusionary rules other than

res judicata and collateral estoppel in order to decide the

present case, for we conclude that Cameron’s complaint

was properly dismissed because under long-established

common-law principles, Cameron’s conviction gives the

defendant police officers a complete defense to the present

claim.

l4a

In determining whether an asserted defense is available

to defeat liability in an action brought under § 1983, the

courts have generally been guided in large part by whether

the defense was available at common law. In Pierson v.

Ray, 386 U.S. 547 (1967), for example, the Supreme

Court, stating that “§ 1983 ‘should be read against the

background of tort liability that makes a man responsible

for the natural consequences of his actions,’” id. at 556

(quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)),

reviewed traditional principles with respect to the immu-

nity of judges and law enforcement officials from suits for

damages resulting from arrests, noted that the legislative

history of § 1983 gave no clear indication that Congress

intended any wholesale abolition of common-law immu-

nities that might bar suits under that section, and con-

cluded that those common-law defenses were available.

Id. at 553-56. Similar analyses were made in, e.g., City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-68

(1901) (immunity of municipal corporation from punitive

damages); Procunier v. Navarette, 434 U.S. 555, 561-63

(1978) (immunity of prision officials for good faith

actions); Jmbler v. Pachtman, 424 U.S. 409, 431 (1976)

(immunity of prosecutors in initiating or prosecuting the

state’s case); and Scheuer v. Rhodes, 416 U.S. 232, 247-48

(1974) (immunity of state executive officials for discre-

tionary acts). Thus, in Owen v. City of Independence, 445

U.S. 622 (1980), the Supreme Court cited many of these

cases and others, and noted that

[i]Jn each of these cases, our finding of § 1983 immu-

nity “was predicated upon a considered inquiry into

the immunity historically accorded the relevant offi-

cial at common law and the interests behind it.”

Imbler v. Pachtman, supra, at 421. Where the immu-

nity claimed by the defendant was well established at

ON ee ee

_—eeeeeee ee

1Sa

common law at the time § 1983 was enacted, and

where its rationale was compatible with the purposes

of the Civil Rights Act, we have construed the statute

to incorporate that immunity.

Id. at 638.

Our review of common-law principles with respect to

arrest reveals that an action for arrest without probable

cause, sometimes colloquially called an action for “false

arrest,” would be analyzed as a claim either for false

imprisonment or for malicious prosecution. See, ¢.g.,

Broughton v. State, 37 N.Y.2d at 457-58, 373 N.Y.S.2d at

94; | Harper & James, The Law of Torts § 4.11, at 337-39

(1965) (“Harper & James”). Though the elements of these

two traditional torts differ, see, e.g., Broughton v. State, 37

N.Y.2d at 456-57, 373 N.Y.S.2d at 93-94; Harper &

James § 3.18 (false imprisonment); id. §§ 4.1-4.6 (mali-

cious prosecution); Restatement (Second) of Torts §§ 35,

653 (1965 & 1977) (“Restatement”), there is substantial

overlap. Civil liability for false imprisonment following

an arrest is governed by many of the same principles that

govern a claim of malicious prosecution, see Restatement

§ 37, comment b; see also Harper & James § 4.11; id.

§ 4.12, and, as discussed below, it is clear that with respect

to either claim, a person who has been convicted of the

crime for which he was arrested is barred from recover-

ing.

In an action for malicious prosecution, in which the

plaintiff must show the absence of probable cause to

arrest, see Restatement § 653; Broughton v. State, 37

N.Y.2d at 457, 373 N.Y.S.2d at 94; Harper & James § 4.5,

at 311, he must also show, inter alia, that the proceedings

previously commenced against him terminated in his

favor, see, e.g, Broughton v. State, 37 N.Y.2d at 457, 373

l6a

N.Y.S.2d at 94; Singleton v. City of New York, 632 F.2d

185, 195 (2d Cir. 1980), cert. denied, 450 U.S. 920 (1981);

Harper & James § 4.4, at 307. Thus, “[t]he fact that the

person against whom criminal proceedings are instituted

is guilty of the crime charged against him, is a complete

defense against liability for malicious prosecution.”

Restatement § 657; see generally Annot., “Unreversed

Conviction as Conclusive in Action for Malicious

Prosecution,” 69 A.L.R. 1062 (1930) (citing cases dating

back to 1793); see also Annot., “Conclusiveness, as Evi-

dence of Probable Cause in Malicious Prosecution

Action, of Conviction as Affected by the Fact that it Was

Reversed or Set Aside,” 86 A.L.R.2d 1090 (1962).

In an action for false imprisonment, the plaintiff need

not show that the prior proceedings against him termi-

nated in his favor, but the defendant is entitled to prevail

if he can establish that there was probable cause for the

arrest, see Broughton vy. State, 37 N.Y.2d at 458, 373

N.Y.S.2d at 95; Restatement § 37, comment 5; id. § 653,

and a conviction of the plaintiff following the arrest is

viewed as establishing the existence of probable cause. See

Broughton v. State, 37 N.Y.2d at 458, 373 N.Y.S.2d at 95

(“a conviction which survives appeal would be conclusive

evidence of probable cause”); Menard v. Mitchell, 430

F.2d 486, 491 n.26 (D.C. Cir. 1970) (“even if no probable

cause existed at the time of arrest, .... a suit for false

arrest may not normally be maintained if the arrest was

followed by conviction, regardless of the validity of the

arrest at the time it was made”); Pouncey v. Ryan, 396 F.

Supp. 126, 127 (D. Conn. 1975) (Newman, J.) (in neither

an action for “false arrest” nor an action for “false impris-

onment ... is a plaintiff permitted to challenge probable

cause in the face of a valid judgment of conviction”);

Restatement § 667(1) (“conviction of the accused . . . con-

17a

clusively establishes the existence of probable cause,

unless the -onviction was obtained by fraud, perjury or

other coirupt means”); see id. § 37, comment b; id. § 653.

Thus, the common-law rule, equally applicable to

actions asserting false arrest, false imprisonment, or mali-

cious prosecution, was and is that the plaintiff can under

no circumstances recover if he was convicted of the

offense for which he was arrested. Broughton v. State, 37

N.Y.2d at 458, 373 N.Y.S.2d at 95; Harper & James

§ 4.11, at 345; id. § 4.12, at 346. This rule “represents the

compromise between two conflicting interests of the high-

est order—the interest in personal liberty and the interest

in apprehension of criminals,” id. § 3.18, at 275, and con-

stitutes a refusal as a matter of principle to permit any

inference that the arrest of a person thereafter adjudged

guilty had no reasonable basis. The law enforcement off-

cer is given this protection because he “has a duty to the

public to prevent crime and arrest criminals; the perfor-

mance of these duties would be seriously impaired unless

peace officers were given considerable discretion in their

performance and protected from liability for the conse-

quences of honest and reasonable mistakes.” Restatement

§ 121, comment g.

The parties have given us no basis for inferring that

Congress intended that § 1983 not incorporate the

common-law rule, and our own efforts have turned up no

such evidence. We note the Supreme Court’s “assumption

... that members of the 42d Congress were familiar with

common-law principles, including defenses previously

recognized in ordinary tort litigation, and that they likely

intended these common-law principles to obtain, absent

specific provisions to the contrary,” City of Newport v.

Fact Concerts, Inc., 453 U.S. at 258, and we see no reason

18a

to believe Congress intended that the common-law

defense of conviction not be equally applicable to § 1983

claims for arrest without probable cause.

Where the civil rights plaintiff has been convicted of the

offense for which he was arrested, we have in effect

accepted the fact of that conviction as conclusive evi-

dence of the good faith and reasonableness of the officer’s

belief in the lawfulness of the arrest. See, e.g., Singleton v.

City of New York, 632 F.2d at 195 (“common law rule

that termination of the earlier proceedings in favor of the

accused is an essential element of a malicious prosecution

claim has generally been adopted and applied by federal

courts” in actions under § 1983). Thus, in Pouncey v.

Ryan, 396 F. Supp. at 127, the court summarily dismissed

a § 1983 action based on an arrest without probable cause,

concluding that the common-law principle barring post-

conviction suits for false arrest and false imprisonment

was applicable to this type of action under § 1983.

The availability of this defense in constitutional litiga-

tion does not undermine the goals of § 1983. Provision for

the right to bring suit under § 1983 is designed both to

allow an injured person to obtain compensation for the

loss of his civil rights and to deter public officials from

further violation of such rights. E.g., Owen v. City of Inde-

pendence, 445 U.S. at 651; Carey v. Piphus, 435 U.S. 247,

254-57 (1978). Neither interest is more than minimally

implicated where the person arrested was convicted. The

fact of conviction means that the plaintiff was not entitled

to escape arrest entirely and that the arrest was simply

premature. Though the right to be free from arrest with-

out probable cause is substantial, the injury caused solely

by prematurity of arrest is, of itself, insubstantial. It is of

course possible that, incident to the premature arrest, the

19a

officers will have seized evidence that incriminates the

person arrested, and that this could result in more than

negligible injury. But the law seeks to forestall the possi-

bility of real injury by forbidding the use of any such evi-

dence against the accused at his criminal trial. See, e.g.,

Florida v. Royer, 460 U.S. 491, 507-08 (1983); Brown v.

Illinois, 422 U.S. 590, 599 (1975). Thus, the exclusionary

rule minimizes the injury resulting from an unlawful

arrest.

The exclusionary rule also lessens the need for § 1983

actions as a deterrent to the making of arrests on less than

probable cause. The primary goal of law enforcement off-

cers is to see to it that persons who have committed

crimes are punished for those crimes, and we think off-

cers seek to avoid making flawed arrests in order to avoid

the exclusion of evidence that could lead to conviction.

We are thus persuaded that the incremental deterrence

value of imposing on the officer liability for the minimal

amount of damages likely recoverable by the person con-

victed after an unlawful arrest would be small.

In sum, we conclude that the proper accommodation

between the individual’s interest in preventing unwar-

ranted intrusions into his liberty and society’s interest in

encouraging the apprehension of criminals requires that

§ 1983 doctrine be deemed, in the absence of any indica-

tion that Congress intended otherwise, to incorporate the

common-law principle that, where law enforcement off-

cers have made an arrest, the resulting conviction is a

defense to a § 1983 action asserting that the arrest was

made without probable cause.

Application of this principle to the present action

makes it plain that the dismissal of the complaint was

proper. Cameron concedes, as he must, that he was con-

20a

victed of criminal possession of siolen property, the

offense for which he was arrested. The conviction was

affirmed on appeal, and there has been no suggestion that

it was in any way procured by fraud or perjury. Whether

or not the facts surrounding the officers’ encounter with

Cameron on Eighth Avenue amounted to probable cause

for his arrest, the conviction of Cameron of the offense for

which he was arrested gives the officers a complete

defense to the present suit.

CONCLUSION

For the foregoing reasons, the judgment dismissing the

complaint is affirmed.

2la

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

82 CV 457

(ERN)

KENNETH S. CAMERON,

Plaintiff,

—against—

MATTHEW FOGARTY and JOHN HALBIG,

Defendants.

MEMORANDUM ORDER

Plaintiff invokes this Court’s jurisdiction pursuant to 28

U.S.C. § 1343 to seek redress under 42 U.S.C. § 1983 for an

arrest allegedly made by two New York City police officers

without probable cause. The case is before the Court upon

defendants’ motion to amend the answer to assert the defense

of collateral estoppel and coincident motion for summary

judgment upon that defense.

The transcript of a state criminal trial, in which plaintiff was

convicted of possession of stolen property, provides the basis

for defendants’ motion. They contend that the existence of

probable cause to arrest plaintiff was determined in that trial

and bars the instant suit.

The trial record reveals that plaintiff was convicted of

possessing a stolen automobile, which had been rented by his

girlfriend from a Hertz facility at Chicago’s O’Hare airport,

using a false identification. Plaintiff was later apprehended by

defendant police officers in Manhattan after he failed to stop

for a red light and then parked the stolen vehicle in a bus stop.

At trial the following colloquy occurred regarding the arrest of

the plaintiff and the search of his person for evidentiary items.

22a

“MR. DOCKERY: I hate to bother the Court with what

may be a trifling matter.

“You recall in a brief bench conference this morning, in

the course of the officer’s [Fogarty’s] testimony who is

about to resume the stand, I asked to make very sure that

the search which was to follow at the police station and

the statements then taken, and all these things, that those

would be probably [sic] structured.

“The Court permitted me to wait until it became more

timely.

“Thereafter when these things were introduced into

evidence I took objection and I also asked the Court to

give me permission to renew an objection on a later date

after cross-examination.

“But at this point it must be clear that the items that

were introduced have not been properly foundationed

with respect to the propriety of such a thing as admissible

evidence in this case.

“I would therefore askk—

“THE COURT: Based on the evidence I heard from this

officer, the specific exhibits, driver’s license, airline ticket,

other property were the incidents of a lawful arrest.

“Under the circumstances they were properly admissi-

bie.

“There were no pretrial motions to suppress. I don’t

know what the basis would have been in making one,

under the circumstances of this case.

“It is clear, after the defendant had been arrested, I

assume he was searched, and those properties were the

consequence of an arrest.”

“MR. DOCKERY: Thank you sir. Now I am ready to

proceed.”

Tr. at 214-16 (emphasis added).

23a

On the basis of that ruling, defendants contend that the issue

of the existence of probable cause to arrest plaintiff was

determined adversely to him, noting that

“* * * “New York has now reached the point where there

are but two necessary requirements for the invocation of

the doctrine of collateral estoppel. There must be an

identity of issue which has necessarily been decided in the

prior action and is decisive of the present action, and,

second, there must have been a full and fair opportunity

to contest the decision now said to be controlling.” ”

See Gilberg v. Barbieri, 53 N.Y.2d 285, 291 (1981) (quoting

Schwartz v. Public Administrator, etc., 24 N.Y.2d 65, 71

(1969)); accord Murphy v. Gallagher, 761 F.2d 878, 882 (2d

Cir. 1985).

In Allen v. McCurry, 449 U.S. 90 (1980), however, the

Supreme Court had recognized that determinations and judg-

ments rendered upon matters in issue in state criminal proceed-

ings may have collateral consequences in a subsequent civil suit

brought under 42 U.S.C. § 1983. Thereafter, in Haring v.

Prosise, 103 S. Ct. 2368 (1983), which concerned a claim that

Virginia police officers had searched the accused’s apartment

without probable cause, and seized materials used to manufac-

ture a controlled substance, phencyclidine, the Court disposed

of the officers’ contention that the accused’s (plaintiff’s) guilty

plea to one count of manufacturing a controlled substance

collaterally estopped his § 1983 suit. The Court stated,

“We begin by reviewing the principles governing our

determination whether a § 1983 claimant will be collater-

ally estopped from litigating an issue on the basis of a

prior state-court judgment. Section 28 U.S.C. § 1738

generally requires ‘federal courts to give preclusive effect

to state-court judgments whenever the courts of the State

from which the judgments emerged would do so.’ In

federal actions including § 1983 actions, a state-court

judgment will not be given collateral estoppel effect,

however, where ‘the party against whom an earlier court

24a

decision is asserted did not have a full and fair opportu-

nity to litigate the claim or issue decided by the first

court.’ Moreover, additional exceptions to collateral es-

toppel may be warranted in § 1983 actions in light of the

‘understanding of § 1983’ that ‘the federal courts could

step in where the state courts were unable or unwilling to

protect federal rights.’

“The threshold question is whether under the rules of

collateral estoppel applied by the Virginia courts, the

judgment of conviction based upon Prosise’s guilty plea

would foreclose him in a later civil action from challeng-

ing the legality of a search which had produced inculpa-

tory evidence.”

The teaching of Prosise supra, however, which is derived

from the mandate of 28 U.S.C. § 1738 and thus stems from the

law of Virginia, suggests a different basis for judgment in this

case. Unlike New York, in the courts of Virginia, with one

exception not relevent to this case, “criminal judgments,

whether by guilty plea or adjudicated guilt, have no preclusive

effect in subsequent civil litigation.” Prosise v. Haring, 667

F.2d 1133, 1139 (4th Cir. 1981), aff’d 103 S. Ct. 2368 (dis-

cussed therein). As the Court of Appeals noted, Virginia’s rule

against preclusion by criminal judgments rests upon the mutu-

ality requirement, id. at 1139 n. 5, which is no longer part of

New York’s law of collateral estoppel. Gilberg, supra, 53

N.Y.2d at 291-92. (“The rejection of the mutuality principle in

civil actions also undermined the rule, which had long pre-

vailed in this State, that a conviction in a criminal case could

not be given conclusive effect in a subsequent civil suit. That

rule was abandoned in 1973.” (citations omitted)).

Under the law of New York, in an action for false arrest or

false imprisonment, a conviction which survives appeal is

conclusive evidence of probable cause. Broughton v. State, 37

N.Y.2d 451, 458 (1975), cert. denied sub. nom. Schanbarger v.

Kellogg, 423 U.S. 829 (1975). While § 1983 creates a federal

cause of action, Allen, supra, 449 U.S. at 98, the allegation of

25a

an arrest without probable cause under 42 U.S.C. § 1983, see

amended complaint 4 24, has been found similar, if not identi-

cal to a state law claim for false arrest. See Raysor v. Port

Authority, etc., F.2d ‘ (2d Cir. July 15, 1985).

In this case, the amended complaint contains no state claim

and specifically alleges:

“25. Plaintiff has no remedy for the violation by

defendants of his rights guaranteed by the Fourth and

Fourteenth Amendments to the United States Constitu-

tion under the laws of the State of New York.”

That allegation implicitly acknowledges that plaintiff’s con-

viction and unsuccessful appeals to the Appellate Division and

the New York Court of Appeals, see amended complaint § 22,

bar a state law action for false arrest. In such an action,

because the arrest is warrantless, the defendants bear the

burden of demonstrating reasonable cause for the arrest,

Broughton, supra, 37 N.Y.2d at 457-58, which is the equivalent

of probable cause. Raysor, supra. This same rule applies to a

§ 1983 action predicated upon a warrantless arrest. Gilker v.

Baker, 576 F.2d 245, 246 (9th Cir. 1978). Given the similarities

in the state and federal claims here, logic would dictate that

plaintiff’s state conviction would also bar a federal claim

asserting the absence of probable cause to arrest. See McCalm

v. Barry, 697 F.2d 366, 370-71 (D.C.Cir. 1983) (discussion

therein); Martin v. Delcambre, 578 F.2d 1164, 1165 (Sth Cir.

1978) (per curiam); see also Alexander v. City of Peekskill, 80

A.D.2d 626, 436 N.Y.S.2d 327, 328 (2d Dept. 1981).

In reversing this Court’s prior dismissal of this case, the

Court of Appeals stated,

“[W]e do not address the issue whether a conviction bars

a subsequent civil rights claim based on lack of probable

cause to arrest, or whether under the principles of Allen v.

McCurry, 449 U.S. 90, 103-04 (1980), appellant may be

barred by collateral estoppel.”

Cameron vy. Fogarty, 705 F.2d 676, 678-79 (2d Cir. 1983).

26a

With the benefit of the amended complaint drafted by a

court-appointed attorney and the teaching of Haring, supra,

the Court has addressed this issue. Although the court’s ruling

that plaintiff’s conviction bars the instant suit is not based

upon collateral estoppel per se, see Pouncey v. Ryan, 396 F.

Supp., 126, 128 n. 2 (D.Conn 1975), “* * * the preclusion

mandated for state court judgments by section 1738 is not

expressly restricted to that achieved under the ‘res judicata’ or

‘collateral estoppel’ labels; * * *.” Brown v. Edwards, 721

F.2d 1442, 1449 n. 8 (Sth Cir. 1984) (emphasis in original).

Thus, although a finding of probable cause to arrest was not

necessary to sustain plaintiff’s conviction, see United States v.

Crews, 445 U.S. 463, 474 (1980), under the law of New York,

that conviction, sustained on appeal, necessarily includes a

finding that there was probable cause to arrest and thereby

bars a subsequent civil suit challenging the existence of proba-

ble cause for the arrest.

Accordingly, defendants’ motion to amend the answer is

granted, defendants’ motion for summary judgment is

granted, and the complaint is dismissed.

SO ORDERED.

Copies of this Memorandum Order are being forwarded to

counsel for the parties.

/s/ EDWARD R. NEAHER

U.S.D.J.

Dated: Brooklyn, N.Y.

August 19, 1985

Filed: August 20, 1985